Allahabad High Court
Famina Singh vs State Of U.P. And 2 Others on 12 July, 2022
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on : 04.07.2022 Judgment Delivered on : 12.07.2022 Court No. - 29 Case :- SPECIAL APPEAL No. - 530 of 2019 Appellant :- Famina Singh Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Sanjay Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
This Intra Court Appeal has been filed questioning the legality, propriety and correctness of the judgment of the learned Single Judge dated 29.03.2019 passed in Writ (A) No.4359 of 2019 (Famina Singh Vs. State of U.P. & 2 others) whereby the learned Single Judge has found no good ground to entertain the writ petition and dismissed the same as it related to termination of the contractual engagement relying upon the Division Bench decision rendered in Rajesh Bhardwaj Vs. Union of India, reported in 2019 (2) ADJ 830.
It has been vehemently contended by the learned counsel for the appellant that the decision rendered in the case of Rajesh Bhardwaj Vs. Union of India, relied upon by the learned Single Judge does not lay down the proposition of law that a writ petition at the instance of a contractual employee would not be maintainable and the learned Single Judge manifestly erred in law in non-suiting the writ petitioner/appellant on that score. Non renewal of a contractual appointment very much lies within the purview of writ jurisdiction under Article 226 of the Constitution of India. The writ petitioner though initially appointed on the post of Female Staff Nurse on contract basis vide order dated 15.04.2015 had been working continuously without break in service under orders of extension being passed from time to time. Vide order dated 12.03.2018 the Respondent No.3 issued a notice to the petitioner that her services will be terminated after giving one month payment. Against the termination notice issued by the Respondent No.3, the petitioner filed a writ petition being Civil Misc. Writ Petition No.8457 of 2018, which was disposed of with a direction to the petitioner to approach the respondent authority for redressal of her grievances. In pursuance of the order passed in the writ petition, the petitioner filed a detailed representation on 02.04.2018 before the respondent authority which was rejected vide order dated 10.05.2018. After rejection of his representation the petitioner again filed a writ petition being Writ Petition No.4359 of 2019 which was dismissed vide order dated 29.03.2019.
We have heard the learned counsel for the petitioner/appellant and the learned Standing Counsel for the State respondents and have perused the record.
The factum that the appellant/petitioner was appointed on contract basis vide order dated 15.04.2015 and such appointment was the contractual appointment is not in dispute.
Having heard the learned counsel for the appellant and having perused the decision rendered in the case of Rajesh Bhardwaj Vs. Union of India (Supra) we find that the coordinate Bench while dealing with the question Nos.2, 3 & 4 framed by it opined as under:-
"30. ........ In these circumstances, in the cases like petitioner, consistently it has been laid down that employment is simply a part of contract. If employment is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") and, therefore, no remedy under Article 226 shall be available since employee, if complains about wrongful termination of service, then must avail remedy in common law by claiming damages.
Then again in para 31 of the aforesaid judgment while drawing a distinction between nature of appointment/engagement governed by statute or statutory rules i.e. governed by "status" and governed by a contract of service opined as under :-
"31. ....... Nature of engagement/appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889. Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and 'contractual appointment', we may take up case of a Government Servant. Origin of employment in a Government department is contractual. There is an offer and acceptance in every case but once appointed to the post or office, the person appointed, i.e., Government Servant, acquires a status and his rights and obligations are no longer determined by consent of both the parties but same are governed by Statute or statutory rules which may be framed and altered unilaterally by employer, i.e., the Government. Legal position of a Government Servant, thus, is more one of 'status' than of a 'contract'. The hallmark of 'status' is that attachment to a legal relationship of rights and duties must be by public law and not by mere agreement of parties. Relationship between Government (employer) and Government Servant (employee) is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant."
Recently, the Apex Court in the case reported in 2018 (3) SCC 218 (Yogesh Mahajan Vs. Prof. R.C. Deka, Director, All India Institute of Medical Sciences) while dealing with the contractual appointment and non renewal of contract refused relief observing as under:-
"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.
7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner."
In view of the above, we find no error or illegality in the view taken by the learned Single Judge in dismissing the writ petition. The special appeal lacks merit and is, accordingly, dismissed.
Order Date :- 12.07.2022
pks
(Ashutosh Srivastava,J.) (Pritinker Diwaker,J.)